Volunteers? You and you

It does you, or rather me, the world of good to go to another jurisdiction and listen to their point of view about disputomania. This time, "their land" is Scotland. I went there to give a paper to Scottish lawyers and arbitrators. It was about what I confess to be a discomfort zone of mine: the way the courts of England and Wales treat mediation. Oh, come on Bingham, you reckon the judges in the English courts virtually bully people into mediating. The Scottish system hasn't gone within a bargepole's length of doing what the English one has.

Let me explain. Mediation works ever so well.

I am a fan. England has led the world in football and judicial proceedings, but not in mediation. The fact is that England has historically preferred to give one side or other a thick ear in litigation or arbitration. Often, these cases are hopeless and both sides would have been oodles better off if they'd mediated. But how do you get people to do so? It is, after all, a truly voluntary process.

The folk who get most embarrassed when litigation goes awry are the judiciary. So the judges try to prevent all that waste by being on the look-out for disasters waiting to happen. It is a sort of spot the ball. It doesn't surprise me when a judge tells my opponent, without reference to me, that Mr B will readily agree to mediate. Oh yes? Well, yes of course, my lord.

Put it this way, the job of the judiciary is to "actively manage cases". This includes "encouraging the parties to use alternative dispute resolution". This was decided because we lawyers were slow off the mark in looking at options. And it wasn't a bad idea; in the early days, it was regarded as a sign of weakness to suggest mediation. That "who blinks first" mentality was a damn nuisance. So a judge's encouragement was welcome, at first. Notice the word "encouragement". That's what's gone wrong.

Pay attention. No court in this land can order, instruct or demand that a litigant shall mediate. There is not even a presumption in favour of mediation. There will be no unacceptable constraint on the right of access to the court.

Credit: Simone Lia

No court in this land can demand that a litigant shall mediate. It is counterproductive and damaging for a court to direct such a method

Go further: the English judges entirely accept that the effectiveness of mediation is that it is voluntarily entered into because none of it is binding without consent. It is counterproductive and damaging for a court to direct such a method. The court can only encourage and facilitate. And let me add this; lawyers should not write to anyone to tell them mediation is compulsory. That is a fib.

The interference by the court goes this far: if the court or any party invites you to mediate, you are at liberty to say no if it is reasonable to do so. If you say no and it was unreasonable, and you go on in the litigation and win - yes, win - there is a real possibility that the court will not award you your costs.

Now, that word "reasonable" is slippery. It is easy, and wrong, to consider the reasonableness of saying no in hindsight. The starting point has to be what seems reasonable at the time of inviting mediation. You can't invite the other bloke to mediate if you haven't told him what your case is. For heaven's sake, the other party must be put in possession enough of the ins and outs of the matter to do a risk assessment. If the information is scant, it is impossible to mediate. Look, there are a lot of holding mediation parties now; they get their guests to pay for the privilege of attending but have no intention of settling.

Let me appeal to the judges; don't even begin "encouraging" mediation until you have seen not just the pleadings but the expert's reports and witness statements and legal principles relied on. Next, there is no proper reason to mediate if it adds disproportionately to the expense of the litigation. Work out the cost of both. Remember, mediation costs are invariably split. Next is delay. Say no if it stymies progress. Next, say no to mediation if you believe that it is a ploy, charade or game that has no prospects of success.

So, please, no "encouragement orders" from judges. There has to be enough knowledge of the case to predict an outcome. And watch out for try-ons. Using mediation to squeeze a few bob out of the other bloke is sharp practice - just like the "hand of God" really. Or are you too young to remember that match?